Azmi LP:

I have read the judgment of my brother Suffian and I agree with him that this application be dismissed for reasons he gave.

It is apparent that Mr. Callow's evidence, if given at the trial would probably have an important influence on the result of the case in that it would corroborate the evidence of the plaintiff himself on the question of fact which the learned Judge had held against the plaintiff. However, in my view the plaintiff could have obtained Mr. Callow to give evidence at the trial if he had used reasonable diligence to discover his whereabouts and that he already knew that Mr. Callow could have corroborated his evidence in Court. It would be apparent that the importance of Mr. Callow's evidence was only brought home to the plaintiff after the judge's* finding against him on the fact which could have been corroborated by Mr. Callow.

JUDGMENT

Suffian FJ:

This is an application for an order that the plaintiff appellant be at liberty upon the hearing of his appeal to adduce further evidence.

To justify the reception of this evidence "three conditions must be fulfilled:

First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial;

Second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive;

Third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently creditable, although it need not be incontrovertible."

These were the tests enunciated by Denning LJ (as he then was) at p. 748 in Ladd v. Marshall [1954] 3 All ER 745.

I do not think that the appellant has satisfied the first condition. He knew that Mr. Callow was at the material times chief architect at the Ministry of Education, that he had direct knowledge as to what drawings he (the appellant) was required (a) to trace, (b) to modify where necessary, and (c) to prepare new designs from Government drawings and the reasons which made the drawings necessary, and that Mr. Callow's evidence would therefore be important to the appellant's case. The appellant was not an ignorant and unrepresented rustic but the head of an important engineering firm represented by an eminent firm of solicitors. He contrived to trace Mr. Callow's address after judgment and I am of the opinion that it cannot be said that it could not have been obtained before the trial had he used reasonable diligence.

It is next said that, as Mr. Callow was the only officer of the Ministry of Education who had direct knowledge of the transactions in dispute, he would in the ordinary course have been called as a witness by the defendants, that he (appellant) had no reason to think that the defence would not call him as a witness and expected the defence to do so and that, if the defence had called him as a witness, it would have been improper for the appellant to make any approach to him prior to the hearing or to try to ascertain what evidence he would give. In support his Counsel, Mr. Peddie, cites Roe and Anor v. Robert McGregor and Sons Ltd; Bills v. Roe and Another [1968] 2 All ER 636. But here it is important to observe that the appellant knew that Mr. Callow was an expatriate officer who had left the country in 1962, i.e. about a year before he saw fit to file this claim against the Government, that he or his solicitors knew or should have known that it was most unlikely that the Government would call an expatriate officer who had long since left the country (the trial did not take place until 1967), that it was for him (the appellant) to establish his case and if he or his solicitors thought that Mr. Callow's evidence was all that crucial they could have asked whether the Government intended to call him. This they failed to do.

The Government turned the table on the appellant by themselves calling as their witness an ex-employee of the appellant whose evidence happened to be mo